O’Brien -v- The Personal Injuries Assessment Board & Anor, [2005] IEHC 100 (2005)

Docket Number:2004 No. 785JR
Party Name:O’Brien, The Personal Injuries Assessment Board & Anor
Judge:Mac Menamin J.
 
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[2005] IEHC 100THE HIGH COURT Record No. 2004 785JR

BETWEENDECLAN O'BRIENAPPLICANT AND

THE PERSONAL INJURIES ASSESSMENT BOARD RESPONDENTAND

IRELAND AND THE ATTORNEY GENERALNOTICE PARTIES

JUDGMENT of Mr. Justice John MacMenamin dated the 25th day of January, 2005

The applicant in these proceedings lives at Esker Meadow, Tullamore Co. Offaly. He is a single man. His date of birth is 8th September 1972.

At the times material to the proceedings he was employed at the premises of Galtee Meats, Clara Road, Kilbeggan, Co. Westmeath as a boner in a meat factory, and was working on a sub-contract to a company known as Ard Meats Limited. His job involved boning carcasses of beef at a table.

While in the course of this employment the applicant alleges that an accident befell him on 5th November 2001. He claims that an overhead line which was carrying carcasses of meat collapsed as a result of which he was struck on the back and sustained injuries.

He was taken to Tullamore Hospital where he was x-rayed and had a bone scan. As a result he was certified 'off work' for a period of approximately four months. It is contended that he had a gradual return to work with periods off work when his back pain became acute.

The applicant returned to work in or about February 2002. He contends that he gradually became aware that although working full-time, he was able to produce only about 75% of his previous output. His earnings suffered proportionately. He asserts he has not been able to return to his previous level of productivity. He is apprehensive that he will not be able to do so. He claims that he suffers pain and aches at the end of a days work.

The applicant did not initiate proceedings immediately after the alleged accident. It was only on 12th August 2004 that he travelled from Tullamore to a solicitor's office in Newbridge, County Kildare. He instructed his solicitor, Mr. Denis Boland of P.V. Boland and Company. He told him the circumstances of the accident and gave a summary of the circumstances.

The applicant was informed by Mr. Boland that, because of the coming into operation of the Personal Injuries Assessment Board Act 2003 (hereinafter 'the Act'), his claim would have to be initiated by making an application to the Personal Injuries Assessment Board (hereinafter 'the Board'). This is because the Act provides that a potential claimant is prohibited from initiating civil proceedings in pursuit of damages for injuries without having first made application to the Board.

Of more immediate concern was the Statute of Limitations. The three-year time limitation was looming large as a consideration. It would have run its course in approximately eleven weeks from the date on which Mr. Boland first met his client, that is 4th November 2004. The accident, it will be remembered, is alleged to have occurred on 5th November 2001.

Mr. Boland arranged for his client to visit him again in his offices on 16th August. By that time he hoped to be in a position to advise him further, and to identify the manner in which proceedings should be initiated. The solicitor had in mind the steps necessary to assemble a claim for personal injuries. These include obtaining a medical report; corresponding with the applicant's employers and the owners of the factory in which he was working; identifying loss of earnings; corresponding with the orthopaedic surgeon who had treated him; and generally assembling the data necessary to process the claim.

Mr. Boland also wished to contact the Board to inform them of the claim and to put them on notice of its pending arrival, and also to advise them of his concern in relation to the Statute of Limitations which was at that time a primary concern.

Prior to the coming into operation of the Act in May 2004, the applicant's solicitor would have been able to protect his position vis-à-vis the three-year time limit simply by issuing a plenary summons in the High Court.

Mr. Boland in his affidavit states that on 16th August 2004, he telephoned and had a conversation with a Ms. Jo Crowley who works in a call centre. This call centre, run by a company named S.M.S. Business Process Outsourcing Limited, acts as an agent to which the Board outsources the business of processing claims.

Mr. Boland states that in the course of his conversation with Ms. Crowley he gave her particulars of the claim. He expressed concern regarding the Statute of Limitations. He gave an outline of the claim as the client had presented it to him. He indicated that he would be sending an authority to the Board on behalf of his client. This would require the Board to deal directly with him as the applicant's solicitor.

The applicant states he would not have the facilities necessary for the initiation and preparation of a legal claim of this type. He has neither office, nor typing, nor secretarial, facilities.

Mr. Boland states that Ms. Crowley asked to be given the applicant's telephone number. As it transpired the conversation was being recorded, and such recording was kept and preserved by the Personal Injuries Assessment Board.

Within three hours of the conversation Ms. Crowley had contacted the applicant personally on his mobile telephone. The applicant was at the time at the side of the street. He spoke with Ms. Crowley. By the end of this conversation the applicant had formed the view that he was being told by Ms. Crowley that he did not really need the services of a solicitor and that all that he needed to do was to send in a medical report to the Board. I am satisfied that this view was erroneous.

The contents of the transcript of the call do not bear out that impression. While Mr. O'Brien may have formed this view it was not as a consequence of any specific statement made by Ms. Crowley or any statement emanating from the Board to him directly.

The applicant states that he reported this matter to his solicitor. He was resentful of the position being taken by the Board. He wished to receive neither advice from the Board nor instructions of an unsolicited type from any such person or body.

Mr. Boland completed the application form, which he had obtained from the Board on behalf of his client. He also completed and furnished to the Board a document entitled 'Confirmation and Authority', signed by his client, whereby he was appointed solely to conduct business on behalf of his client. This document dealt with his authority (1) to act with reference to Mr. O'Brien's claim before the Board; (2) to receive all settlement cheques; (3) solely to deal with all correspondence on behalf of Mr. O'Brien; (4) to act in any subsequent court proceedings. The document also recited Mr. O'Brien's liability for all necessary outlay and legal costs incurred in proceedings before the Board and acknowledged that the Board would not pay the claimant's legal costs.

He wrote to Mr. Cogley, the consultant surgeon who had been treating the applicant. He wrote preliminary letters to his client's employer and the owners of the factory. He was concerned that, at that point, he had not received a medical report. He was also concerned that the Board were insisting that the medical report would form part of, and be a necessary adjunct to, the application. Mr. Boland apprehended that, in the absence of such a report, the application would not be considered to be a full and complete one. For this reason he intervened in an endeavour to expedite and obtain this report.

On 19th August 2004, the Board wrote directly to the applicant. This procedure was at variance from that proposed by the applicant himself and Mr. Boland. It was at variance from the authority which had been furnished to the Board by Mr. Boland. On 24th August 2004, Mr. Boland replied to the Board complaining of the fact that it had not recognised the authority he had furnished to it, authorising him to receive communications on behalf of the applicant. He indicated the difficulties he anticipated he would have regarding the obtaining of a medical report before the expiry of the three-year time limit prescribed by the Statute of Limitations.

On 26th August 2004, Mr. Boland received a telephone call from a Mr. Hewson, an official of the Board, indicating that it would not deal directly with solicitors. However Mr. Hewson indicated that the Board would furnish copy correspondence to Mr. Boland. He stated that Mr. O'Brien's claim would not be registered without a medical report.

Correspondence took place from that date until the middle of September at which time the issue of the registration of the applicant's claim was unresolved. So too was the extent of recognition which had been given to the letter of authority which had been furnished by Mr. Boland to the Board.

Mr. Boland's apprehension appears to have been as follows: that the Board was adamant that it would only register the claim on receipt of the medical report; that it might refuse to copy correspondence to him unless his client signed an authority which they themselves proffered; and furthermore, that even if his client executed an authority produced by the Board, it would continue to correspond directly with him albeit that it would also send copies of such correspondence to Mr. Boland.

In the meantime, Mr. O'Brien signed no further authority other than that previously signed on 16th August 2004.

A series of telephone calls took place in September. From these it emerged that the Board would register the claim if by chance the solicitor had not obtained a medical report for his client by 31st October 2004.

On 7th September 2004, the applicant initiated judicial review proceedings. He sought an order of mandamus directing the respondent formally to record and register the applicant's claim in order to stop the Statute of Limitations from running in respect of his claim; a similar order directing the respondent to register the applicant's claim having already recorded it on 19th August; an injunction directing the applicant to stop and...

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